Foxx v. Foxx

357 So. 2d 754 (1978)

Thomas G. FOXX, Appellant,
v.
Frances G. FOXX, Appellee.

No. HH-159.

District Court of Appeal of Florida, First District.

April 14, 1978. Rehearing Denied May 15, 1978.

John Peter Kirtz, Jr., Pensacola, for appellant.

Richard H. Merritt and Thomas E. Johnson of Merritt & Johnson, Pensacola, for appellee.

MILLS, Judge.

Mr. Foxx appeals from a final judgment in a dissolution of marriage action contending the trial court erred in awarding Mrs. Foxx the home and the household furnishings of the parties as partial lump sum alimony. We agree and reverse.

Mrs. Foxx did not allege a claim for lump sum alimony in her petition or the amendments thereto. There being no claim for lump sum alimony, the court had no authority to award Mrs. Foxx lump sum alimony.

The judgment recites that the parties agreed in their testimony that Mrs. Foxx be awarded the household furnishings. This is incorrect and is unsupported by the record. In fact, the record furnished us clearly shows that no such agreement was made by the parties.

The record reflects that the parties have no children, they are both healthy, employed and occupy similar financial positions except Mrs. Foxx earns slightly more weekly than Mr. Foxx. Under these circumstances, the record does not support an award of lump sum alimony. Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976).

We reverse that part of the final judgment awarding Mrs. Foxx the home and the household furnishings and remand this case to the trial court for the entry of a judgment consistent with the views expressed above.

BOYER, Acting C.J., concurs.

BOOTH, J., dissents.